The Despicable Antigay Attack on Arkansas’ Courts

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On May 9, 2014, Judge Chris Piazza, a state trial court judge in Arkansas, ruled that the state’s statutory and constitutional bans prohibiting marriage for same-sex couples violated the constitution of the United States, and had to be struck down.

Two months later, with the appeal of Judge Piazza’s ruling before the Arkansas Supreme Court, the Arkansas Legislative Counsel filed a Resolution with the state high court accusing Judge Piazza of violating his oath to uphold the Arkansas Constitution. The Resolution closed with a commitment to “explore legislative remedies” to prevent “judicial activism.” State Senator Jason Rapert—the key author of the Resolution against Piazza—clarified that the Resolution is part of his strategy to put a judicial recall mechanism on the ballot.

Senator Rapert is hoping to borrow a page from anti-LGBT forces in Iowa. In 2009, Iowa’s Supreme Court unanimously ruled that Iowa's marriage ban violated Iowa’s constitution and extended the freedom to marry to same-sex couples. Anti-LGBT groups almost immediately launched an outright attack on Iowa's courts, starting with an election campaign that resulted in the ousting of three well-respected justices during what should have been a routine retention election. This attempt to bully the bench sent a clear message: Rule against us, and you will be next.

Fearing that the threats and pressure from the Arkansas Legislative Counsel might intimidate the justices hearing the marriage case, attorneys for the plaintiff couples filed a motion for recusal—essentially asking any justice with plans to seek reelection to step aside. They hoped that stepping aside would prevent the public perception that justices up for election would be more concerned about preserving their seats on the court than ruling fairly in the marriage case.

Attacks on our courts are outrageous and put our system of justice at risk, but we do not have to resign ourselves to the “new normal” of a politicized judicial branch. Unfortunately, there are many ways that we leave our state courts vulnerable to these assaults. Judges in 39 states face some sort of election – yet most voters in these races know very little about the candidates or their qualifications. Special interests have realized how easy it is to take advantage of uninformed voters by taking out a few distorting advertisements that attack judges who issued rulings they don’t like. When compared with securing a legislative majority or changing who occupies the governor’s mansion, discrediting and ousting a state judge or two is a relatively inexpensive and cost effective way for these actors to skew policy to their liking.

So what can we do to preserve the integrity of our judiciary?

We can start fighting back by calling out these self-interested groups, and by discrediting their vile smears. We can educate the public about the role our courts play in safeguarding our rights. We can call for public financing for judicial candidates. Better yet, we can scrap judicial elections altogether.

As Justice Sandra Day O’Connor said, “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.”

What we should not do is reward these intimidation tactics by allowing them to bring our judges and our system of justice to their knees. Recusal in the Arkansas case would have set a dangerous precedent, almost certain to set off a chain reaction: threats would become more common, the perception of outside influence would become more justified, and more judges would step aside – or step down entirely.

Fortunately, the Arkansas Supreme Court recently refused the motion to recuse. However, time will tell what damage Senator Rapert’s power play will have on the Arkansas courts, and what other attacks it might encourage.